ABC v West Heath 2000 Ltd & Anor

The Claimant is now 23 years old, having been born on 18 June 1992. Between July 2006 and 2011 she was a pupil at the Defendant’s special educational needs school, for children with emotional and behavioural difficulties. The Claimant had developed severe epilepsy at the age of eighteen months. This was difficult to control and the Claimant then developed behavioural problems. She has some communication and memory difficulties.

She claims damages against the Defendant for personal injuries which she alleges were caused by sexual abuse she received while she was a pupil at the school, from a member of staff, Mr Whillock, the Part 20 Defendant/Third Party. It is alleged that Mr Whillock groomed the Claimant, then aged about sixteen, by befriending her, listening sympathetically to her problems, spending increasing amounts of time with her, regularly talking on the telephone with her, encouraging her to send indecent images of herself to him, exchanging text messages of a sexual content and eventually, sexually assaulting her. The allegations of sexual assault include indecent touching, digital penetration, oral sex and one allegation of rape.

At the time of the alleged abuse Mr Whillock was the Vice Principal and Head of Boarding at the school. He was the co-author of the Child Protection Policy for the school. He strongly denies the allegations, save for those relating to the indecent images and the texts. On 21 April 2010, in the Maidstone Crown Court, Mr Whillock pleaded guilty to four counts of possession of indecent photographs of a child, the Claimant, and was sentenced to a community order, and banned from meeting with the Claimant or communicating with her for a period of three years.

The Defendant accepts vicarious liability for Mr Whillock, the part 20 Defendant, if it is established that he sexually abused the Claimant. It puts the Claimant to strict proof of the allegations. The Defendant seeks 100 per cent contribution from Mr Whillock for any damages the Defendant may have to pay to the Claimant.

The Claimant was extremely fond of Mr Whillock, and remains fond of him today. She declined to cooperate with the police, initially denying that even indecent images had been sent. She did not allege that there had been any physical abuse until 2013 when she decided to make a claim against the school, encouraged by her father, albeit that at that stage, the Claimant said in evidence, he was only aware of the sending of indecent images.

In addition to the Claimant’s medical problems, she has a dysfunctional family. The relationship between her mother and father has been tense for years and in 2009/2010 they were considering divorce. There was domestic violence in the family, including physical assaults on the Claimant by her father and elder brother. Both the Claimant and her brothers were placed on the child protection register in 2009 under the category of emotional and physical abuse.

Shortly before trial the Defendant applied to Master Fontaine to amend its Defence so as to raise the issue of consent by the Claimant. This application was refused, amongst other grounds, on the basis that such a late application would require the trial date to be vacated as further evidence on the issue would have to be obtained. The issue was again raised at the beginning of the trial, but was not pursued by the Defendant after the court had indicated that it shared Master Fontaine’s view that adjournment would be necessary for further evidence if the issue of consent was to be considered. It is therefore agreed between the parties that consent is no longer an issue and the Defendant fully accepts that any sexual activity between the Claimant and Mr Whillock, was abusive. It is therefore the extent of any abuse which took place which has to be established.

The Claimant’s case is put upon two bases: firstly that she was physically assaulted and is entitled to damages for those assaults, and secondly that if no assault occurred, and the abuse was limited to the texts and indecent images, the claim for damages arises under the principles set out in Wilkinson v Downton as re-formulated by the Supreme Court in Rhodes v OPO 2015 UK SC32. It is alleged that if there was no physical contact amounting to an assault the emotional manipulation of the Claimant and the encouragement of her to take and send indecent photographs of herself and the ensuing sexual banter by text, amounted to the intentional infliction of harm as redefined in the case of Rhodes.

The Claimant progressed well initially at the Defendant’s school. She had gone there because she had been excluded from mainstream education as a result of her difficult behaviour, but settled in well at The New School at West Heath. There is no doubt that she was then a very vulnerable girl; she could have many fits during the day, as many as ten or twelve, though they varied in their intensity and on occasion she could apprehend their onset and prevent them occurring. The risks to her were however so great that she had to have a teaching assistant accompany her all day, though not necessarily throughout lunchtime.

In August 2008 the Claimant had a left temporal lobectomy which significantly improved her condition; indeed for several years she was entirely fit free. As a consequence she no longer had to be monitored by a teaching assistant throughout the day.

It is probable that the Claimant had suffered brain damage either through the cause of the initial onset of epilepsy or through the fits themselves. It is likely therefore that she had suffered organic brain damage which may be responsible for her communication and memory problems. Her memory improved to some extent after the operation in August 2008, as also did her behaviour and mood for a while when she was relieved of the regular fits. The pressures of her difficult family life however continued and she often sought to escape the tensions of the family home during the evenings by going to a café at the local Tesco store where she became well known and was treated with kindness and understanding by some of the staff there.

The effect of her dysfunctional family upon her behaviour and mental stability is significant both on the facts and upon the medical evidence. It appears that her general improvement in behaviour after her operation in August 2008 continued until about Halloween (31 October) 2009. On 3 November 2009 there was apparently a drunken row between the Claimant’s parents which ended with her mother throwing bottles at her father and being taken away by the police and placed in the cells. This was no doubt a particularly difficult experience for the Claimant’s mother, especially as she was herself a police officer; indeed she attempted suicide in the cells that night. During the period from October through until the end of the year there were constant arguments within the family as recorded in the Claimant’s diary and in December 2009 a fight between the Claimant and her younger brother Stephen, with whom she normally got on well. It is recorded in the mental health assessment of 22 December 2009 that the Claimant was in a low mood because of family conflicts and that she wanted to “leave the family, sleep outside and get raped”.

During this time the Claimant made no mention of any abuse by Mr Whillock to either the doctors or mental health workers who saw her. It is however the case that also during this period the relationship between the Claimant and Mr Whillock was developing, certainly at the level of texts and photographs, into a sexual one. It is not clear when the relationship first moved from quasi friendship to one with sexual overtones; the Claimant is not consistent in her recollection of the duration of the abuse that she alleges, and the texts, as not all of them have been recovered, may give an incomplete picture. It is necessary to look at the history of the relationship through the emails and the texts in order to examine the nature and development of the relationship.

The surviving emails start in 2007 rather than in 2009 as Mr Whillock initially insisted in evidence. There is an email from the Claimant to Mr Whillock of 5 October 2007 ending “love from ABC xxxx” and an email dated 3 February 2003, which looking at the sequence, is also probably 2007, from Mr Whillock to the Claimant which is headed “Hello Princess” and ends “Love xxxxx” This suggests, Mr Levinson, counsel for the Claimant, submitted, that the relationship was already inappropriate by 2007. The Code of Practice which Mr Whillock had himself co authored, reminded staff that boundaries had to be kept between students and teachers, and the teacher was not a pupil’s friend. Mr Whillock accepted in evidence that his signoff in the email 3 February 2007, wrongly dated 3 February 2003, was in clear contravention of the policy, but, he said, was meant with the best of intentions. He said that he addressed other female students in the same manner, though no evidence was produced by him to this effect. If that is correct, it would equally be in contravention of policy and best practice.

There are no further emails extant from 2007 and 2008, but by the summer of 2009 Mr Whillock was meeting up with the Claimant in the school holidays; again in contravention of proper practice. On 31 August 2009 in a long exchange of chatty emails the Claimant said that she had played squash which made her feel stiff. Mr Whillock emailed her suggesting she had a nice long hot bath if she was still stiff, or should treat herself to a massage at the gym “so long as it’s a lady that does it!”. When it was put to Mr Whillock that the phrase intended to mean that he didn’t want another man’s hands on the Claimant’s body he said that was not so, and he had just made the reference as a joke. He was however unable to explain the joke and whilst he accepted that what he had written might be described as light hearted banter, he also accepted that it made more sense in the context of a sexual relationship going on. He said that was not the case however, but “pure fantasy.” I am clear that the use of these words in the email demonstrates that at the time Mr Whillock had a sexual interest in the Claimant. His email encouraged the Claimant, who was then just 16, to see herself as being in an intimate and private relationship with him.

On 8 November 2009 he further encouraged the close and intimate relationship with her by ending his email “Love you xxx”. He accepted in cross examination that this was more intimate than simply signing “Love”. These two emails, sent before the texts and photographs of an explicit nature were, contrary to Mr Whillock’s assertion, wholly unprofessional.

It was around this time in the autumn of 2009 that Mr Whillock started to telephone the Claimant late at night at bedtime. He did so, he said in evidence because her mother and father had had a fight and her mother had been taken off to the cells. The Claimant was frightened to go through the front door and indeed frightened to go home, feeling safe only in her bedroom. Mr Whillock said that he advised that it would be appropriate to phone up and see whether she had got to her bedroom safely and in order to do that rang her in the evenings at bedtime.

The texts and images recovered from the Claimant’s or Mr Whillock’s mobile phones show that the telephone calls took place as late as 11pm or later, some of them when the Claimant was in bed. Mr Whillock said in evidence that he sought, and was granted, permission to make these calls by one or other of the Claimant’s parents and Mrs Wells, the Principal of the school. Having heard the evidence of the Claimant’s mother, Mrs Wells and Mr Whillock and considered the contents of the police statements by those witnesses and that of the Claimant’s father, I reject Mr Whillock’s evidence upon this issue. The evidence of the Claimant’s mother, which I accept, made it clear that neither she nor her husband were aware of who was making these late night calls to their daughter until by chance, outside Tesco, the Claimant’s mother took the Claimant’s phone and realised that the man talking to her daughter was Mr Whillock. He did not ask either of the parents for their permission. He did discuss the care of the Claimant with Mrs Wells but did not inform her of the fact that he was telephoning the Claimant whilst she was in bed having 4 to 5 minute conversations with her. He certainly did not tell her of the content of those conversations nor the texts which were taking place at or about the same time in the evening. Had he told Mrs Wells of the late evening phone calls she would have refused permission; she said in evidence, that such calls would have rung alarm bells. I accept her evidence.

Mr Whillock told the Claimant that she must delete the photographs and texts from her mobile phone. She did not delete all of them, though Mr Whillock did delete those on his mobile phone. On 13 January 2010 the Claimant left her mobile phone at school. It was picked up by a member of staff, Stacey Miles, who decided to look at the inbox as she had recently thought that the Claimant was becoming slightly obsessive about Bill Whillock. She had written that she loved Bill on her jotter or pencil case and that message had been found by a member of staff. Ms Miles thought that the Claimant was relying on Bill too much rather than utilising the support of the post 16 staff.

When she looked at the phone she saw text messages from Mr Whillock calling the Claimant “Princess” and referring to her having a hot bath. She also saw naked images of the Claimant. The matter was reported to the police and Mr Whillock eventually prosecuted and convicted as set out above. The texts which were on the Claimant’s phone or those which were recovered from the Defendant’s phone amount to some 18 texts between 18 November 2009 and 12 January 2010. There may have been more texts and photographs but they are not before the court. There were 20 photographs sent by the Claimant to Mr Whillock on the phones; 12 of these involve photographs of the Claimant either topless, in her underwear, or naked in the bath, and three of them show photographs of her genitals. The remaining photographs are of snow scenes, photographs of food, of animals and a netball court. The following texts demonstrate the nature of the relationship between the Claimant and Mr Whillock, -

I am clear in my conclusion both from the texts themselves, and the evidence, that Mr Whillock not only encouraged the photographs but requested them and was sexually aroused by them. He did not, I am satisfied, tell her to stop sending such photographs.

It is important to note that Mr Whillock accepted in evidence that whilst the texts and indecent images were being sent and received he was also meeting the Claimant during the school holidays.

On the weekend of 2/3 January 2010 or 9/10 January 2010 Mr Whillock took the Claimant to his house and then drove her to a motorway service station where there was a Tesco store, for a cup of coffee; this was a round trip of in excess of 40 miles. The car was parked in a dark secluded area under trees and after they had got their coffee, the Claimant said in evidence, they went back to the car where Mr Whillock performed oral sex upon her and took “full advantage” of her. The Claimant told Dr de Taranto that he had full vaginal intercourse with her on this occasion against her wishes. He asked her to lie down and she didn’t know what he was doing but it hurt. She got him to drop her at the supermarket rather than at home because she was in tears. The Claimant told Professor Maden that Mr Whillock tried to have full sex with her on one occasion in his car; he “pretty much had full sex” with her. She also said to Professor Maden that he did have full sex with her.

Mr Whillock agrees that he took the Claimant to the service station but says that they just had coffee there and no sex at all took place. He did not drop the Claimant off at the supermarket but took her home and returned her to her parents. The evidence of the Claimant’s mother confirms that there was anxiety about the Claimant going out with Mr Whillock on this occasion and that he did drop her off at the house rather than the supermarket.

On 21/22 January 2010 the police removed two digital cameras, one on Mr Willocks’s dressing table, and two computer hard drives in other rooms, in his flat at the school. Photos of Mr Whillock kissing a girl with men standing around, and newspapers in various eastern European languages advertising brothels etc. were found, as were hard core pornographic DVDs of homosexual acts. In addition, photograph albums were discovered which contained hundreds of Polaroid images of Mr Whillock performing a variety of different sexual acts, in one of which there was a photograph of a young woman in hardcore bondage. A selection of these photographs was taken to the headmistress to see if any of those involved could be identified as pupils, former pupils or members of staff. None were in fact identified.

Mr Whillock said in evidence that the pornographic DVDs had been confiscated from students and he had been keeping them with a view to burning them at his home in Kent. When it was put to him that as DVDs they could be simply destroyed by being broken in two he said that that had not occurred to him. The Polaroid photographs he said, were all of himself performing sex with a previous partner who had since died. He had kept these as a memento. All this pornographic material was found in Mr Whillock’s flat at the school.

As Mr Levinson submits, Mr Whillock’s apparent interest in pornography is not in itself probative of any act of sexual abuse. Nevertheless the Polaroid photographs of Mr Whillock engaged in various sexual acts, together with the fact that he kept these does demonstrate his strong interest in sex and appetite for it. The fact that he kept pornography at school may, as Mr Levinson submits, inform about his appetite for risk. I do not accept his evidence that the DVDs were confiscated from students and were merely kept there until he could destroy them; they could simply have been broken rather than be taken away to his house in Kent.

The Claimant’s response to leaving her mobile at school, the discovery of the texts and photographs and Mr Whillock’s arrest was dire. She took an impulsive overdose, suffered from acute distress and continued with suicidal threats and threats of self harm. She feared that her life depended on the outcome for her friend Bill, who had “not done anything wrong”. As far as she was concerned it had been blown out of all proportion. On 16 January 2010 she said that she loved him and wanted to live with him, and again that he’d done nothing wrong. She was reviewed by the Crisis Resolution Team at Priority House which deals with disturbed children with mental health problems. She had scissors in case the outcome for Bill was not favourable to her. The diagnosis was of Adjustment Disorder, and signs of Personality Disorder with a dysfunctional family. On 23 January 2010 she said she would like to knife her dad in the back. On 2 February 2010 she cut her chest with scissors and didn’t want to be at home. Her parents were drinking and arguing and she picked up a knife so that the police had to terminate the call they were then having with the family. On 25 February 2010 she said that she planned to commit suicide if her friend was sent to prison.

On 18 March 2010 she was returned to Priority House, after an argument with her father who had emailed some of her emails to his account for forwarding to the police in relation to the prosecution of Mr Whillock. On 22 May 2010 she took an overdose after the court case against Mr Whillock.

The Claimant complained of anxiety on 12 September 2013 and it is noted she was experiencing disabling anxiety in which her muscles became stiff and she felt she had no nerves in her body. She described panic attacks with palpitations and not being able to swallow. She felt that she had had a stroke. She has continued to suffer from anxiety.

Her anxiety predated 2009 as do her behavioural problems. Dr de Taranto, the consultant psychiatrist on behalf of the Claimant, and Professor Maden the consultant psychiatrist on behalf of the Defendant, agree that the Claimant’s complex history of significant physical, neurological, social and mental health problems predated the alleged abuse and that many of those problems, including family conflict continued to affect the Claimant and her ongoing conditions. The difference between them is the extent to which the abuse and its discovery is responsible for the Claimant’s current condition and her ongoing problems. What they are both agreed about is that the Claimant, when she was a needy young person with inadequate support, turned for help to a man who exploited her vulnerability and breached the boundaries of an appropriate teacher – student relationship.

It is agreed between the parties that these are threefold, firstly the extent of the sexual abuse, secondly causation, and thirdly quantum. It is now agreed between the Defendant and the part 20 Defendant that the Defendant will be entitled to 100% contribution if it is ordered to pay damages to the Claimant.

I am satisfied upon the basis of the texts, the indecent images, and the evidence, in particular that of Mr Whillock, that he was actively encouraging the Claimant to send indecent photographs to him and that he did so because he was sexually interested in her and hoped to have a sexual relationship with her. The indecent images aroused him sexually as he accepted in evidence.

I have no doubt that Mr Whillock was not merely interested in the Claimant sexually, but that he was grooming her for some period of time for sexual activity. This is not to say that he was not fond of her or that he did not seek to advise her from time to time on her family problems. That was part of the relationship that they had, and that he built upon in order to secure her dependency and reliance upon him. But it was, I am satisfied upon the evidence, always his ulterior motive to have some kind of sexual relationship with her.

When considering the extent of the abuse beyond the admitted texts and indecent photographs it is necessary to consider the evidence of the Claimant and of the Third Party in greater detail. There are no objective, external sources of any evidence as to what occurred between them.

I am satisfied that neither the Claimant nor Mr Whillock have been fully truthful in their evidence or in their dealings with others.

The Claimant suffered problems giving evidence, and indeed generally in life due to her communication, comprehension and memory difficulties which probably stemmed from her early brain damage when an infant. Her apparent social ease and charm tend to belie her difficulties and make them less apparent than they are. It was clear during the course of her evidence that she did not always follow the questions being asked of her, could not always find the words to give the answer she was seeking, and occasionally became confused. I do not wish to underestimate her disability, which undoubtedly exists, but it is also the case that she remains a young woman of charm with, in general, an ability to express most of that which she wishes to communicate.

Mr Levinson cites an example of the Claimant giving different answers to a similar question expressed in a different way, namely the occasion when she agreed in cross examination that she had told Dr de Taranto that she had had no sexual relationships in order to bolster her claim, but then immediately denied, as part of the same answer, that she had been trying to mislead the experts to increase the value of her claim. Mr Levinson submits that this inconsistency was clearly lost on the Claimant who was trying to say that she had answered the experts’ questions about this to the best of her ability. I am conscious of the fact that the Defendant and Third Party’s response was that the first part of her answer was correct.

I am nevertheless quite satisfied that it would be appropriate for the court to take into account the Claimant’s accepted difficulties with communication comprehension and memory. I shall bear all these in mind when testing her evidence.

Mr Weitzman, counsel for the Defendant, and Mr Payne counsel for the part 20 Defendant, submit that the Claimant’s evidence was misleading and deliberately designed to support her claim in various respects. Firstly they contend that the Claimant gave an inaccurate account of her sexual history to both medical experts. She told Dr de Taranto on 31 July 2013 that she had never had any sexual relationship and didn’t want one because, as a result of the abuse, she did not believe sexual relations could be enjoyable. In her witness statement paragraph 50, she said that she did not like having sexual contact with anyone as a result of the abuse. Both of these accounts are inconsistent with what in fact is the case. The GPs notes show that she sought general contraceptive advice and counselling in May 2012; she had a partner aged 30 and looked happy. On 27 November 2012 her periods had not been regular, and no contraception had been used when she had been having casual sex about 3 to 4 months earlier. She had a pregnancy test which was negative. She said in evidence that she had forgotten about these matters when interviewed by Dr de Taranto. The Defendant and Third Party said that this was not credible.

The Claimant gave a different account to Professor Maden in May 2014. She said that she had never had any sexual problems with the exception of feeling her confidence and self esteem had dropped for a while after the disclosure of her relationship with Mr Whillock. Her one and only boyfriend was Ed whom she met in Miami. They had a sexual relationship which she enjoyed. When asked about the GP’s notes she told Professor Maden that the pregnancy test was because she had had sexual intercourse with Mr Whillock. That could not have been correct because sexual intercourse with Mr Whillock, if it had occurred, was several years before the pregnancy test.

In December 2014 the Claimant told Dr Muthuveeran that she had had three short term relationships.

The Claimant accepted in evidence that her account to Dr de Taranto and Professor Maden had been inaccurate, and she accepted the relationships set out in the GPs notes. She said that she had simply forgotten them at the time of the medical examinations.

Her accounts to the doctors are very inconsistent. They range from telling Dr de Taranto she never had any other sexual relationship than the one alleged with Mr Whillock, repeated in her witness statement, and telling Professor Maden that she had never had any sexual problems and enjoyed sex with Ed. This inconsistency and its obvious artlessness leads Mr Levinson to submit that it may be thought the Claimant lacked the cunning to lay a false trail in her medical records. It is surprising that she should repeat in her witness statement of November 2014 not liking sexual contact at all because of the sexual abuse by Mr Whillock, when only some five months earlier she had been telling Professor Maden that she enjoyed sex with her boyfriend in America.

The overall picture suggests to me that the differing accounts which the Claimant gave of her sexual relationships were in part due to her inadequate memory but also in part due to her preparedness on some occasions to exaggerate her claim where she thought it might help her. I do not consider that embarrassment about talking about her sexual relationships in front of her mother (if she was actually present at any of the examinations) is likely to be a correct explanation for the inconsistencies of her accounts.

It is also pointed out on behalf of the Third Party that the Claimant’s evidence as to the duration of the abuse varied from 3 years, to 2 years to 1 year or even between the ages of 13 and 19. It is however easy to see how confusion over the level of the relationship and the length of the abuse in that relationship might arise in a young woman looking back at her time in school some years earlier.

The same applies to the frequency of the abuse. Mr Payne points out that on some occasions it is said to be 3 to 4 times a week and on another once a week. I do not however regard this apparent inconsistency to be of significance. If the abuse did occur, and occur more in some weeks than others then the Claimant’s recollections might be correct.

Both Mr Weitzman and Mr Payne contend that the Claimant also lied about her relationship with Mr Whillock after the discovery of the texts and conviction. She said in her witness statement paragraph 50, that she had had no contact with Mr Whillock. She told Dr de Taranto at the end of July 2013 that she still loved Mr Whillock and wanted to be with him if she could and said that she had been trying to find him. She felt anxious about seeing him, wanting to see him, but not wanting to see him. The Claimant did not tell Dr de Taranto in January 2015 when she saw her again that she had in fact now seen the Third Party on numerous occasions. Nor had she told Professor Maden in May 2014 that she had been seeing the Third Party on a regular basis, meeting him, having coffee with him and on one occasion having a curry with him. She wrote him a letter dated 6/11/2013 telling him how much she missed him and apologising for the trouble she had caused him. She invited him to friend her on Facebook either earlier in 2010, or after she had re-met him. She sent him texts including a link to a love song.

Her mental health worker, William Parsons, expressed concern to her about her renewed contact with Mr Whillock. It is recorded in the Patient Progress Notes of 12/02/2014 that the Claimant said that she had met Mr Whillock on several occasions and was concerned when she had been in the car with him, and expressed some concerns about his behaviour. However she liked speaking to him, and did not wish to stop contact with him, and was worried about any actions that Mr Parsons might take due to her concerns. She was worried also that Mr Whillock would be angry if he, Mr Parsons, informed the police. She liked being with Bill because he gave her money and made her feel looked after. Mr Parsons did contact the Public Protection Unit who informed him that because ABC was of age and full capacity there was no action to be taken about her contact with Bill.

On 5 March 2014 it was stated in the Risk Overview that ABC had seen the Third Party several times, was exchanging texts and talking to him. She is reported as suggesting that he was making advances on her and was stating that she was fearful of his behaviour but enjoyed his company and liked the fact that he was caring for her and gave her money. The author of the report said there appeared to be grooming behaviour there.

Mr Weitzman, supported by Professor Maden, submits that the Claimant’s behaviour in seeing Mr Whillock is inconsistent with the alleged abuse. Had he abused and raped her she would not wish to have any further contact with him. It was for this reason, it was submitted, that the Claimant denied any contact with him in her witness statement and did not mention such contact either to Professor Maden or to Dr de Taranto.

It can be seen from the above that the Claimant had many conflicting views of the Third Party. She was indeed somewhat fearful of him, but nevertheless wanted to see him. The evidence would suggest that she is still fond of him and perhaps still is infatuated with him. Dr de Taranto said that the Claimant must have deliberately not disclosed her contact with him, but she had complex reasons for having so acted. Her ongoing relationship with him was confusing and the fact that she lied about it showed that she knew that there was something wrong with it.

I am quite satisfied that Dr de Taranto’s evidence upon this issue is correct. The Claimant wanted to see Mr Whillock but knew that the rest of the world disapproved strongly of her doing so. The 39 year age difference between them must have become more apparent as she got older. She had seen when she had reported the matter to her mental health workers that it had been reported to the public protection unit. I am satisfied that her feelings about Mr Whillock were extremely confused in 2013; she felt that she was still in love with him, but was concerned about his behaviour and the making of advances to her; she was somewhat fearful of him but liked his company and the fact that he gave her money. I think it probable that she did not want to admit to the world that she felt that she still loved Mr Whillock. In evidence she said that she felt that after she had seen him again he “lured” her back with him. I accept that is what she felt. As the mental health workers said it appeared that there might be grooming; this had restarted. It might even be the case in the Claimant’s mind, that at least in 2013 when she first met him, she was unsure as to when the period he was not allowed to see her had ended.

Taking the evidence as a whole I conclude that the denial and non disclosure of contact with the Third Party is not a significant point in assessing the truthfulness of the Claimant as a witness or the honesty of her case. If there was any conscious element at all in suppressing this information for the furtherance of her claim it was not a dominant reason, but was lost in the myriad of reasons that she had for keeping the matter quiet. Nor do I accept Mr Weitzman’s and Mr Payne’s submission or Professor Maden’s evidence that continuing to see the Third Party was wholly inconsistent with abuse or rape. The fact remains that the Claimant was still infatuated with Mr Whillock. She still liked him even if she did not like everything that he had done to her. He had groomed her and made her dependant upon and reliant upon him. Seeing him again is consistent with the nature of the relationship that they had and her feelings towards him, even if that relationship did include encouraging her to send indecent images of herself or even physical sexual abuse. The fact that he was in a sense a father figure to her meant that any sexual conduct towards her was extremely confusing but she clearly still felt the need to see him, even though she was uncomfortable about having done so.

Mr Payne submitted that the Claimant’s evidence that although the Third Party sought to make her give him oral sex she declined, demonstrated that the evidence in her witness statement that he made her do it to him was untruthful. I accept her evidence given to me that she did not perform oral sex upon him with the consequence that the passage in her witness statement where she said that she did was inaccurate. I take that into account when assessing her evidence as a whole.

Her failure to report the abuse she now alleges to anyone until she went to see a solicitor, prompted by her father to make a claim, is also a matter I have taken into account though I am clear that her reasons for not initially informing the police of anything against Mr Whillock including even the fact that the indecent images existed, was due to her desire to protect him and her relationship with him.

I now turn to consider the evidence of Mr Whillock. In his role as Vice Principal and Head of Boarding he worked different hours to the teaching staff. He arrived at lunchtime and started work in the afternoon and remained on duty until 10 or 11pm. Accordingly he had premises in the Gate Lodge where a security team were also based on the ground floor. His premises had a bedroom and a sitting room and kitchen. He had during the time that the Claimant was at the school and he was a member of staff there, an office in the main school premises firstly on the ground floor and later on the first floor. The ground floor office had a large uncovered window and the first floor office was in a very busy corridor; there was an open door policy in the school so that students could walk in at any time without knocking.

I do not however accept the submission that the opportunity for abuse could not have arisen between the Claimant and Mr Whillock. I accept Mr Levinson’s submission that it would have been possible for Mr Whillock to organise an opportunity for planned abuse provided that he chose such opportunities carefully. There were occasions as earlier noted in this judgment when the Claimant was alone with him during part of a lunch hour. After she was 16 she went away to college for much of the working day as many post 16 year old students did, but she did however on occasions come back early from college and went to see Mr Whillock at a time when others would not have been around in such numbers and she could have been alone with him. Furthermore as Mr Levinson submits the evidence suggest that Mr Whillock was a risk taker. He was certainly prepared to keep pornographic material in his flat at the school even though students might come into his room.

I consider it unlikely for abuse to have taken place pre the operation in August 2008 because of the presence of the teaching assistant accompanying the Claimant for much of the day before the successful operation. After the operation, abuse in the Third Party’s office could have occurred. I do however find that it is unlikely that either would have removed significant amounts of clothing as the possibility existed of a student walking in. But the opportunity for partial undress, for example the removal of underwear was present.

Mr Levinson submits that the Third Party was and still is manipulative and dishonest. Mr Weitzman in his submissions has described the Third Party as a thoroughly unreliable witness who had groomed the Claimant so that she would send him indecent images, and lied to the police. I found the Third Party to be an unreliable and untrustworthy witness. I am satisfied that he lied in relation to many matters. Thus:-

Mr Whillock was also hesitant and deliberately vague as Mr Levinson submits, in answering questions about similar allegations made against him. He spoke about the transgression of school policy requiring doors to students’ rooms to be kept open at all times which he had been in breach of, stating that this had been examined in the course of tribunal hearing when the school had been found not responsible. He said that there had been no other similar allegations against him, when in fact the allegation that was made, arising out of that incident, was that he had raped a 17 year old girl with learning difficulties. The Claimant does not and could not rely on similar fact evidence; indeed the previous allegations cannot prove any of the matters in issue in the case. Mr Levinson does however rely upon the denial of the Third Party that he’d ever faced such an allegation before as relevant to his credibility.

I found that Mr Whillock also lied about the pornography in his flat at the school. I reject his evidence that pornographic DVDs were kept by him in the flat in order to burn them when in fact breaking them and throwing them away would have been the simplest solution.

I do not accept Mr Whillock’s evidence that the Claimant had told him that her father had been pressing her to sue him, that she had resisted but agreed to sue the school and was “going to make stuff up.” If the Claimant had said that, her case would have inevitably and obviously involved criticism of Mr Whillock and it is improbable that he would have been prepared to continue seeing her knowing that she was making a false claim, dishonestly alleging sexual abuse against him and holding the school responsible for it.

I conclude therefore that the third party is a wholly untrustworthy witness but I have also found that there are various aspects of the Claimant’s evidence which cannot be regarded as wholly reliable. As the burden of proof lies on the Claimant I am conscious of the fact that any exaggeration of her claims requires me to consider her evidence and the issues with considerable caution. I note the decision in Armagas Limited v Mundobas S.A. 1985 WLR640 as to how to deal with credibility issues when there is a substantial conflict of evidence such as there is here. The advice of Lord Goff in that case was where such conflict exists reference to the objective facts and documents, to witnesses motives and the overall probabilities can be of very great assistance in ascertaining the truth. The witnesses themselves however have to be assessed, especially in the light of objective facts and documents and overall probabilities.

I perform that task here. I note that once the abuse was reported the Claimant has given a clear and consistent account of a course of conduct by Mr Whillock culminating, she alleges, in an act of sexual intercourse which she did not consent to. I found her account of a gradually developing and increasingly intimate relationship persuasive in itself and on the probabilities. I noted that when she gave her evidence that Mr Whillock did start to touch her and said when challenged, “yes it did happen” she did so with a quiet nod of the head, an almost internal gesture. I also noted that she appeared to be distressed when describing the events in the car at the motorway service station. The fact that I found part of her account persuasive and convincing does not mean however that I accept her evidence in total.

I am equally satisfied that Mr Whillock lied to the police, to Mrs Wells, and to the court. His denial that he was sexually attracted to the Claimant and his evidence that he didn’t particularly enjoy the Claimant’s company, no more than any one else’s, was wholly against the weight of the evidence and as untruthful as it was unconvincing. The same applies to the initial denial of encouraging the Claimant to send him indecent photographs.

Nevertheless the fact that I have found that the Third Party to be a thoroughly unreliable witness does not mean that every aspect of his evidence is untrue.

I now turn to considering the sexual abuse which I find did occur.

I am satisfied that as the relationship developed the Third Party hugged the Claimant, not in the manner permitted by the school, from the side, but with a full frontal body contact. I accept the Claimant’s evidence that on one occasion she went into the bedroom in his flat at the school premises laid down on the bed and was joined by him. On that occasion he cuddled her but no abuse took place. This was part of the acclimatisation process that he carried out to make the Claimant feel confident about physical contact with him.

I am equally satisfied that on many occasions he sat her on his lap and cuddled her and that this progressed to him touching her sexually and eventually to him putting his hand on and in her vagina. I’m satisfied from the evidence of the Claimant, the Third Party and the texts and the photographs that the Third Party had a strong sexual desire for the Claimant, but knowing his position in the school and her age and her status as a vulnerable student, set about his advances to her slowly and with care. Such activities I have found were perfectly possible in his first floor office if done discreetly and I have no doubt he chose his moment when the corridor was less busy, during the lunch hour or when the Claimant came back early from college to see him when few others were about. His possession of pornography in his flat in the school suggests that he was probably not averse to taking risks.

I find that it is unrealistic and wholly improbable that Mr Whillock, writing texts to the Claimant encouraging and indeed asking for indecent images of her to be sent to him, and being aroused by them, thereafter conducted an entirely professional relationship with her when he and she were alone together at the school.

I do not, however, find that he took his trousers off or her clothing completely off. That is possible but improbable given the position of his office, even at lunch times.

I am however satisfied that the Third Party did ask the Claimant to give him oral sex, but that she declined to do so. Her evidence on this issue was truthful in the witness box, whereas that in her witness statement suggesting that it had taken place is incorrect.

There is no dispute between the Claimant and Mr Whillock that he took her in his car to the motorway service station and that there they had coffee, having first taken her to his home where he changed from the wet clothing he was wearing. I am satisfied that they went back to the car having obtained their coffee and that in the car sexual activities such as kissing and touching took place. As to the rape however only the parties themselves know whether a full act of sexual intercourse took place in the car, but it is a very serious allegation and I am not persuaded that the evidence is sufficient to satisfy me that penetrative sexual intercourse in fact took place. The Claimants’ description to Professor Maden was that the Third Party “pretty much had full sex with her”. This is not a convincing description even though she confirmed to Professor Maden that intercourse had in fact taken place. When she gave evidence upon the matter the description was vague: he “took full advantage of me” “everything happened”. Added to that there is no detailed evidence of how or where in the car the act took place, nor is there any evidence of the location, for example where the nearest lamp post was, how the area was lit, how close they were to the nearest parked car, how busy the service station, was and other similar points.

The same applies to the allegations of oral sex. This was simply dealt with by the description that “everything happened”. Further, the text from Mr Whillock stating he wanted to kiss her vagina “one day” implied that at that date, namely 5 January 2010, it had not taken place. There is also some doubt as to when the visit to the motorway service station was, either the first or second weekend in January 2010, and I am not satisfied that the evidence, taken as a whole, is sufficient for a finding that oral sex on the Claimant took place.

I have therefore found that sexual touching, fondling and digital penetration of the Claimant by Mr Whillock did occur but that I am not satisfied on the evidence that oral sex either on the Claimant or the Third Party or that penetrative sexual intercourse took place. I make these findings on the basis of the evidence I saw and heard, coming in particular from the Claimant and the Third Party, the texts and indecent images, the documents, and the probabilities. I took into account my reservations about the reliability of the Claimants’ evidence with particular focus on the burden of proof.

As to the duration of the abuse that I have found I am satisfied that it occurred in the latter part of 2009 and January 2010. It may have been earlier but there is no need for any finding as to the precise date of commencement. The texts make no reference, directly or indirectly, to sexual intercourse having taken place by early January 2010. They are however in my judgment consistent with sexual touching fondling and digital penetration having taken place.

I reiterate that I reject the contention that the Claimant’s contact with Mr Whillock from 2013 onwards is inconsistent with any abuse having taken place. The Third Party had made her dependant on him and reliant on him. He had groomed her to the point where she was totally infatuated by him. She didn’t like what he did to her, but she very much liked the man, his sympathy, his apparent understanding of her problems and his friendship. He took the place of her father and she did not want to lose him. His grip over her remained so strong that when she saw him again she felt lured back.

There is no doubt that family conflict has been a real and continuing cause of the Claimants past and ongoing mental health problems, and that it was primarily the disclosure of the indecent images and texts which initiated the severe problems which the Claimant then developed.

It is equally clear on the medical evidence, the documents and the evidence generally that as a result of the abuse and in particular its disclosure, the Claimant suffered an adjustment disorder, i.e. a diagnosed psychiatric condition (ICD10-F43.2). This involved increased anxiety, increased self harm, social difficulties with her peers and a decrease in her self confidence and self esteem. The doctors are agreed that for a time these events caused a great disruption in her life. Dr de Taranto puts the length of the adjustment disorder at some ten months and Professor Maden at six months. There is a debate between the two medical experts as to whether or not the Claimant still has symptoms referable to the abuse and its disclosure, particularly as to whether she has an anxiety disorder as Dr de Taranto considers, or a lesser condition, acute anxiety, as Professor Maden thinks, and what the prognosis is for any anxiety condition from which she may suffer.

Having heard the Claimant give her evidence particularly on the issues of her past sexual history, length of abuse and contact with Mr Whillock, both medical experts considered the abuse and its disclosure to be less powerful a causual factor than they had earlier done. Professor Maden considered that the Claimants present state is what it would have been if the abuse had not happened and Dr de Taranto reduced the percentage estimate she had made of the responsibility of the abuse and its disclosure to her anxiety condition, reducing it from 40% - 50%, down to 30% .

Another area where there was agreement between the medical experts was the effect of the abuse upon the Claimant’s view of the relationships she formed. The background of her family conflict would always make the forming of relationships more difficult for her than otherwise might have been the case but the breach of trust by Mr Whillock has, I am satisfied on the evidence, increased her problems significantly. Professor Maden described the breach of trust as being a “massive breach” which “grossly distorted the boundaries” between teacher and pupil. This would have undoubtedly have increased the Claimant’s confusion about relationships between parent and child and teacher and pupil. Doctor de Taranto expressed a similar view but added that such confusion would be likely to continue for as long as her relationship with Mr Whillock was ongoing.

The medical evidence as to the nature and extent of the breach of trust and its effect on the Claimant is of importance. The Claimant was a very vulnerable young woman when Mr Whillock sought to exert his influence over her. He was of course fully aware of that fact and this makes his breach and its nature and extent so much more damaging; he helped to ensure that a vulnerable person was made more vulnerable and that further harm which might have been avoided was rendered inevitable.

It matters not in my judgment that it was the disclosure of the abuse rather than the abuse itself which initiated the serious mental health problems which the Claimant suffered from January 2010. It is in the very nature of successful grooming that the victim may become infatuated, and accept the abuse in exchange for the continuation of the relationship. This is especially so in a case such as the present where Mr Whillock in effect became a father figure, substituting himself for the Claimant’s father with whom she could not get on. It is not, as Mr Levinson submits the sexual acts which caused the problem in themselves in a case such as this, but the emotional manipulation and the encouraging of indecent images which precede or accompany the physical abuse. Nor because of the nature of grooming is it likely that any stress or psychological shock will start at the outset of the abuse; it is likely to come later when the victim is able to see what had truly been happening. The risk of disclosure in such a dangerous illicit relationship was inherent and indeed I note that on 21 January 2010 Dr Barnard, the treating psychiatrist stated that the Mental Health Team knew that texts had been passing between Mr Whillock and the Claimant and planned to approach the school before the disclosure intervened. It should also be noted that the nature of the relationship and the abuse itself was in fact responsible for creating confusion in the Claimant’s mind about her relationships. It is not difficult to envisage the difficulty which someone in her position might feel about being sexually abused by a father figure and the effect which that might have upon her relationships.

I accept Dr de Taranto’s evidence that it is likely to be true that the Claimant suffers from reservations about her sex life. She has, so far, formed short term fairly unsatisfactory relationships. It is probable that difficulties in forming and sustaining relationships relate both to her early family life and conflict as well as to the confusion which her emotional manipulation by Mr Whillock created.

I found Dr de Taranto’s analysis of the case more compelling than that of Professor Maden and accept her evidence that the Claimant does suffer from an anxiety disorder and continued to do so after 2010. The percentage (30%) that is due to abuse will diminish over the next few years. I accept her evidence that therapy will help the Claimant as indeed will more stable relationships.

I am satisfied that causation has been established.

As I have found that there was direct physical sexual abuse as well as emotional manipulation in the encouragement of indecent images, and further because Mr Weitzman on behalf of the Defendant has accepted that the Claimant has a good cause of action for distress caused by the discovery of the indecent photographs, it is not necessary for me to consider this part of the claim as a separate entity in any detail.

I should note, however, that I am entirely satisfied that a claim under Wilkinson v. Downton as explained in Rhodes is established. This tort of intentional infliction of harm in its reformulation has three elements (a) the conduct element (b) the mental element (c) the consequence element. (Rhodes para 73) I am satisfied that each is established. Mr Whillock acted unjustifiably towards the Claimant by emotionally manipulating her and encouraging her to send indecent images of herself to him and engaging in sexual banter in the texts. His manipulation was successful in that she became infatuated with him and wanted to make him happy. She is still infatuated by him now. The mental element requires the Claimant to establish that Mr Whillock intended to cause severe mental or emotional distress to her. There are however, as was said in Rhodes para 112 actions whose “consequences or potential consequences are so obvious the perpetrator cannot realistically say that those consequences were unintended”. It was obvious that the illicit relationship would in the end cause nothing but harm to the vulnerable Claimant some 39 years younger than her groomer and those consequences must have been entirely clear and obvious to Mr Whillock. The consequence element is also established. As I have found under the heading of causation she suffered from an adjustment disorder after the disclosure in January 2010 with an acute exacerbation of her mental health problems when the abuse became public.

The assessment of damages involves considering both the Wilkinson v. Downton element and the assault element as one. I therefore deal with them together.

The Claimant suffered an adjustment disorder with increased anxiety, self harm, social difficulties with her peers and a decrease in her self confidence and self esteem for some ten months. During this time she suffered serious distress, made more than one attempt on her life, injured herself and spent short spells at Priority House. She had to face the embarrassment of the publication of the photographs to many, and experience the hostility of her fellow students who blamed her for the departure of the Third Party. The contemporaneous medical notes indicate serious anxiety and desperate unhappiness in 2010. Her anxiety could involve palpitations, panic attacks and shortness of breath.

The Claimant still, on the evidence of Dr. de Taranto which I accept, suffers from an anxiety disorder and will continue to do so for the next year or the next few years. On the basis of both medical experts she suffers from confusion about her relationships between parent and child due to the emotional manipulation of her by the Third Party. Although she has had short sexual relationships, she has reservations about sex and her relationships with men and remains to some extent infatuated still by Mr Whillock. Her ultimate full recovery will be in part dependent upon whether that relationship continues or ceases.

Neither party has been able to find a comparable case although I have found C v.D[2006] EWHC 166 (QB), and J L v. Archbishop Bowen and ors Manchester County Court March 2015 of some assistance. I have taken account of the seriousness of the breach of trust and emotional manipulation together with the fact that the physical abuse that I have found does not include either oral sex or rape.

Taking into account all the factors set out in the medical evidence, part of the evidence and the documents before me, I assess pain, suffering and loss of amenity in this case at £35,000. Were this to have been a Rhodes case alone I would have assessed the pain, suffering and loss of amenity at £25,000.

As a consequence of Mr Whillock’s conduct and the consequences for the Claimant, the Defendant offered her a place at the school for another year to enable her to reach her educational potential properly. This year was satisfactory and the Claimant achieved one GCSE at grade C in art and design and other GCSEs. Her employment record since leaving school has been patchy and it has been clear that she suffered from lack of self confidence in dealing with others.

It is submitted on the Claimant’s behalf that the extra year at school, whilst successful caused her to lose out on one year of employment and hence earnings as a result of the abuse. This should be calculated as the last year of earnings Mr Levinson submits.

I am, however, not satisfied that the pattern which the Claimant’s employment has followed since leaving school has been significantly different to that which it would have been had the abuse not occurred. Her educational attainments after the extra year were probably much the same as they would have been had no abuse occurred. Her family conflicts and difficulties arising from that have always been in part responsible for her difficulties in life. I am not satisfied that the consequences of the abuse have caused a provable loss of earnings since she left school.

There is, however, some force in the claim that in the future she may suffer handicap on the labour market as a result of the emotional manipulation and abuse. Awareness of the true nature of the relationship between her and Mr Whillock when it comes may well be disruptive and it is, on Dr. de Taranto’s evidence, at least a year and perhaps several years before the anxiety disorder will diminish to the point where her condition is the same as it would have been if no abuse had occurred. These disruptions and continuing anxiety create a handicap on the labour market for her.

I assess damages for handicap on the labour market at a global figure of £10,000.

I accept Dr. de Taranto’s view that psychological treatment would be beneficial even though there is an apprehension that the Claimant would not be prepared to undergo it at present. She did however express a willingness to undergo it in her witness statement and in evidence and I consider it probable that if funds were available she would in the relatively near future seek such help. I award the sum claimed £6,370.

This claim is dependent upon Dr. de Taranto’s view that the Claimant does not have capacity to manage any financial settlement arising out of this claim. Dr. de Taranto considers that whilst the Claimant could understand relevant issues and probably retain the information it is doubtful that she could use or weigh the information to make proper decisions. She expressed in evidence concern about the suggestion that the Claimant and her American boyfriend Ed were going to set up a business in Thailand about which the Claimant was eager but ignorant.

Professor Maden took the view that there is no lack of capacity here and that whilst the Claimant might make unwise decisions she could not be said to lack capacity.

I formed my own view of the Claimant observing her in the witness box and I do not consider, having taken into account the medical expert for each party, that this is a case where she lacks capacity. She may make unwise decisions but that does not mean that she lacks capacity. I am satisfied that this is not a case where deputyship costs should be awarded.

These are only to be awarded where the compensation element is not in itself sufficient to properly compensate the Claimant. I do not consider that applies in this case. However bad the breach of trust and the behaviour by Mr Whillock, I believe the compensation I have awarded is sufficient to cover the case properly. This is not an appropriate case for aggravated damages.

I therefore conclude that the total of the Claimant’s claim is as follows:

Accordingly I award the Claimant damages in that sum. If any further figure in respect of interest arises the parties should calculate that so that it can be included when judgment is handed down.